Herbig v. Walton Auto Co.

• Decision Date: 18 March 1919
• Docket Number: 32927
• Citation: 171 N.W. 154,186 Iowa 923
• Parties: SUSAN HERBIG, Appellee, v. WALTON AUTO COMPANY et al., Appellants
• Court: Iowa Supreme Court

171 N.W. 154

186 Iowa 923

SUSAN HERBIG, Appellee, v. WALTON AUTO COMPANY et al., Appellants

No. 32927

Supreme Court of Iowa, Des Moines

March 18, 1919

REHEARING DENIED JULY 7, 1919.

Appeal from Mahaska District Court.--HENRY SILWOLD, Judge.

APPEAL from an order of the court below reversing the finding and order of the industrial commissioner, reviewing a decision and award of arbitrators.

Reversed.

McNett & McNett, for appellant.

McCoy & McCoy and Burrell & Devitt, for appellee.

STEVENS J. LADD, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

Charles Herbig, husband of Susan Herbig, claimant and appellee herein, while engaged in removing some rubbish from an upper story of a building formerly occupied by appellant as a garage, fell therefrom, receiving fatal injuries. The accident occurred on the 17th of November, 1917, and on December 12th following, appellee filed her claim for compensation, and for arbitration thereof. A hearing was had at Oskaloosa, before the arbitrators appointed by the commissioner, resulting in an award by a majority thereof, allowing appellee $ 6.00 per week for 300 weeks. The award was dated and signed March 6th, and filed with the industrial commissioner on March 8, 1918. Appellant's claim for review was filed March 12th, and notice thereof served upon appellee the following day. The industrial commissioner reversed the finding and award of the arbitrators, upon the ground that deceased's employment by appellant was casual only. Appellee filed written objections with the industrial commissioner, challenging his jurisdiction to review the award. The ground of appellee's objection to the jurisdiction of the commissioner was that no claim for review was filed within the time required by statute. Claimant appealed to the district court from the adverse finding and order of the commissioner. The court held that the industrial commissioner did not have jurisdiction to review the award, for the reason that appellant's application therefor was not filed with the commissioner within five days after the date of the award.

The sections of the statute material to a decision of the questions involved upon this appeal are as follows:

"The committee on arbitration shall make such inquiries and investigations as it shall deem necessary. The hearings of the committee shall be in the city, town or place where the injury occurred and the decision of the committee, together with the statement of evidence submitted before it, its findings of fact, rulings of law and any other matters pertinent to questions arising before it shall be filed with the industrial commissioner. Unless a claim for a review is filed by either party within five days, the decision shall be enforceable under the provisions of this act." Section 2477-m29, Supplement to the Code, 1913.

"* * * Any party in interest may present a certified copy of an order or decision of the commissioner, or an award of an arbitration committee from which no claim for review has been filed within the time allowed therefor, or a memorandum of agreement approved by the commissioner, and all papers in connection therewith, to the district court of the county in which the injury occurred, whereupon said court shall render a decree in accordance therewith and notify the parties. Such decree, in the absence of an appeal from the decision of the industrial commissioner, shall have the same effect and in all proceedings in relation thereto shall thereafter be the same as though rendered in a suit duly heard and determined by said court. Upon the presentation to the court of a certified copy of a decision of the industrial commissioner, ending, diminishing or increasing a weekly payment under the provisions of this act, the court shall revoke or modify the decree to conform to such decision.

"No order or award of an arbitration committee is appealable direct to the courts, but if any party in interest is aggrieved thereby, he may within five (5) days from the date thereof apply to the industrial commissioner for a review of the same by such industrial commissioner in the manner as hereinbefore provided. * * *" Section 17, Chapter 270, Acts of the Thirty-seventh General Assembly.

As will...